Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals,

Kuff’s Pharmacy provided some useful legal training while I poured coffee behind the counter near the rack featuring comic books and Mad Magazine.

Kuff’s is long gone, one of many independent pharmacies buried during the rise of ginormous national chains. It already was obsolete when I worked there in the early 1980s – a fading reminder of the mom-and-pop drug stores that lured customers with a soda fountain, shelves of candy, a few greeting cards, bandages, and a vast selection of tobacco products.

Kuff’s still had a lunch counter, or at least the vestige of one, where customers could get a cup of coffee, a donut, or a Coke. My job was to be there each weekday ready to pour by 7:30 a.m. That’s when the regulars began strolling in – salesmen, a guy who owned the private ambulance service, retirees, the dentist from a few doors down. The same customers showed up at the same time expecting the same two deliverables. One was hot coffee. The other was conversation.

The training came from learning to talk with people who were older than I was. More specifically it came from being taught how to converse without sounding uninformed, nervous, defensive, or – worst of all in the eyes of Kuff’s unpretentious regulars – like a know-it-all with more vocabulary than sense. The lessons were delivered with humor. And a purpose.

These lessons came to mind when I read a recent article in The Yale Law Journal Forum entitled, “Judicial Gobbledygook: The Readability of Supreme Court Writing.” According to the introduction, this article “analyzes the readability of over six thousand United States Supreme Court opinions by measuring the length of sentences and the use of long, polysyllabic words.” Its conclusion: “The data shows that legal writing at the Court has become more complex and difficult to read in recent decades.”

In earlier columns I’ve bemoaned the increasing tendency of legal scholarship to analyze opinions by counting words or applying algorithms instead of actually reading them. I must qualify my numbers-crunching criticism in light of this new article.

I’m backpedaling a bit because the article uses the word “gobbledygook” in its title. This most excellent and unpretentious word is one that Kuff’s regulars certainly would have applauded. Few legal journals meet this standard.

Then the article applies the Simple Measure of Gobbledygook (SMOG) formula, which estimates the years of education needed to understand a given text. The estimate depends on the length of sentences and the number of long multisyllabic words in each sentence.

Minutes of intense internet surfing have confirmed that SMOG is a real thing among those who study readability. I’m pretty sure this isn’t satire.

As applied to Supreme Court opinions, the SMOG formula reveals “a particular spike since 2000” in difficulty level. The article is measured in its conclusions and recommendations. “In legal writing, readability may have an optimal level. High SMOG scores are not necessarily a bad thing.” It continues, “Although true gobbledygook is probably best avoided, to some extent high scores in the Simplified Measure of Gobbledygook may be an unavoidable part of the practice of modern law.” This is because “[t]he law frequently engages with complex subject matter, and the legal issues that the Supreme Court deals with are often the most nuanced.” The article notes that “[in] explaining these issues a degree of complex language is almost inevitable.”

Inevitable or not, the SMOG formula is a useful prod for drafters of opinions and briefs alike. Complex topics do not require impenetrable prose. Tools for simpler writing always are at hand: fewer clauses; fewer commas; shorter sentences; simpler words when appropriate; active voice.

For me, this article is a reminder to write it so the folks at Kuff’s Pharmacy could read it. They were smart. But they had little patience for cold coffee and even less for gobbledygook.